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Lawyers Seek $52.4M in Ed O'Bannon NCAA Antitrust Case

August 25, 2014 | Posted in : Expenses / Costs, Fee Award Factors, Fee Request, Hourly Rates, Lodestar

A recent CBS Sports story, “O’Bannon Lawyers Seek $52.4 Million from NCAA After Victory,” reports that plaintiffs’ lawyers, led by Michael Hausfeld of Hausfeld LLP are seeking attorneys’ fees of $46,865,319 and recoverable costs of $5,555,739 from the NCAA.  The plaintiffs also added they reserve “all rights to amend” their fee request and documentation because they have “not yet had sufficient time to audit these submissions thoroughly” and some attorneys’ time cited could be covered under video-game settlements with Electronic Arts and Collegiate Licensing Company.

On Aug. 8, U.S. District Judge Claudia Wilken ruled that the NCAA violates antitrust law by prohibiting college players from being paid off their names, images and likenesses.  Wilken’s injunction would allow schools to pay players licensing money into a trust fund starting in 2016-17.  Damages were not part of the trial, but Wilken ruled “the plaintiffs shall recover their costs from NCAA.”

Plaintiffs’ lawyers cited how they have survived seven motions to dismiss, won a partial victory at class certification, obtained a partial summary judgment, and won a three-week bench trial.  “The resulting injunction will have considerable financial benefits for the class, as it may well amount to tens of millions of dollars each season,” the O’Bannon lawyers wrote.”  Moreover, and of critical importance, this is pioneering litigation – without any precedent and lacking any preceding public enforcement.  Plaintiffs’ counsel contributed staggering resources to this litigation despite considerable uncertainty of any recovery.”

In their fee request, the attorneys said Hausfeld LLP supervised and coordinated the work of 43 law firms “who contributed resources to this landmark limitation in an effort to match the dozen of attorneys litigating on the NCAA’s behalf … as well as the hundreds of attorneys representing the NCAA’s member schools and conferences across the country.  Each plaintiffs’ firms shared in the considerable risk of non-payment given the unique aspects of this litigation and the NCAA’s past success in attaining dismissal” based on a 1984 U.S. Supreme Court ruling.

The hourly rates cited by the O’Bannon lawyers range from $985 for partners with more than 40 years of experience to $250 for the most junior associates.  “These historical rates are reasonable first because they are the standard rates charged by Plaintiffs’ counsel and comparable to the rates the NCAA has paid for their own counsel in fiercely defending this litigation,” the O’Bannon lawyers wrote.

Hausfeld claimed his law firm has spent 29,874 hours working on the case since 2009 that totals $17,078,140 in billing based on historic hourly rates.  In addition, Hausfeld’s firm claims $2,625,802 in expenses.  Those costs were advanced to Hausfeld LLP during the case “by a client that has hired my firm by the hour,” Hausfeld wrote.  The rates used to calculate those figures “are the usual and customary hourly rates charged for each attorney or staff member’s service,” Hausfeld wrote.

Hausfeld LLP accounts for 38 percent of the attorney hours and total expenses being charged by 25 law firms working on the O’Bannon case, according to the filings.  Boies Schiller & Flexner LLP, which was another key law firm in the case, is seeking $2,279,033 in attorney fees and expenses.  Bill Isaacson, partner at Boies who help try the case, claimed $536,300 in attorney fees for 571 hours at an hourly rate of $938.  Isaacson had the highest attorney fee at Boies.

The filing also show in part how the O’Bannon lawyers paid for the case.  Throughout the case, Hausfeld LLP maintained a litigation fund “into which co-counsel firm paid assessments and which was used to pay for many case-related expenses,” Hausfeld wrote.  For instance, Boies Schiller & Flexner contributed $300,000 to the litigation fund.  Of the expenses that came from the fund, Hausfeld is seeking $195,663 from taxable costs and $3,243,533 in expenses for categories such as photocopying deposition expenses and trial graphics specialists.